THE PRINCETON REVIEW
MASTER LINKING AGREEMENT
This Agreement ("Agreement") is by and between TPR Education, LLC ("The Princeton
Review") and [insert affiliate name] ("Affiliate").
WHEREAS, The Princeton Review operates princetonreview.com and makes available various products and services, information about princetonreview.com and its products and services and other related information;
WHEREAS, The Princeton Review and Affiliate are each enrolled in Awin ; and
WHEREAS, The Princeton Review and Affiliate each desire to establish the general terms and conditions which shall govern advertising and commission arrangements between The Princeton
Review and Affiliate which result from their participation in Awin.
NOW THEREFORE, in consideration for the foregoing and the mutual covenants, representations and warranties made herein, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties agree as follows:
1. OFFERS AND ENGAGEMENTS.
1.1. From time to time, The Princeton Review may post on Awin offers to pay to other participants a specified commission in return for certain marketing and promotional services leading to a Qualifying Link (as defined in Section 3.3 below). If such offers receive an identification number from Awin they shall be deemed to be an "Offer" for purposes of this Agreement.
1.2. If an Offer made by The Princeton Review is accepted by the other party in accordance with the
Offer's terms via Awin, an "Engagement" will have been formed. Each
Engagement shall have the same identification number as the original Offer that lead to the
Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
1.3. At any time prior to Affiliate providing a Qualifying Link, The Princeton Review may, with or without
Notice, and at any time after Affiliate providing a Qualifying Link, The Princeton Review may, with five
(5) days notice(a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by The Princeton Review for an Offer or an Engagement. Affiliate shall promptly implement any request from The Princeton Review to remove, alter or modify any graphic or banner ad submitted by The Princeton Review that is being used by Affiliate as part of an Engagement.
2. AFFILIATE RESPONSIBILITIES.
2.1. Affiliate shall link its site (the "Affiliate Site") to areas within the The Princeton Review Site using those URLs specified in the Engagement (the "Required URLs"). Affiliate may post as many links to the Required URLs and the rest of the The Princeton Review Site as it likes on the Affiliate Site. The position, prominence and nature of links on the Affiliate Site shall comply with any requirements specified in the Engagement. The Princeton Review may request that Affiliate remove links to The Princeton Review Site and Affiliate will promptly comply with such request.
2.2. Affiliate shall not make any representations, warranties or other statements concerning The Princeton Review, The Princeton Review Site, any of The Princeton Review's products or services, or the policies of The Princeton Review Site, except as expressly authorized by the Engagement.
2.3. Affiliate shall not bid on or purchase The Princeton Review branded search engine marketing words and terms. These include "The Princeton Review," and any other variation of The Princeton Review name, either alone or in combination with any other words or phrases, as keywords for search engines, including but not limited to the search engines employed by Google, Yahoo, and MSN. A sample list of prohibited terms is attached for purposes of clarity to this document and incorporated by reference. This list shall serve as a guide of what terms are not permitted to be used in paid search and is not intended to be a complete list of terms prohibited under this section. Affiliates must identify themselves with the term "affiliate" within the text of any search engine listings promoting The Princeton Review Test Prep products. Affiliates shall not in any way represent themselves, either in advertising, metatags or in keywords for search engines as endorsed by or related to The Princeton Review.
The Princeton Review
The Princeton Review Test Prep
The Princeton Review Test Prep and Admissions
The Princeton Review Test Prep & Admissions
The Princeton Review Coupon(s),
The Princeton Review Deal(s),
The Princeton Review Discount(s),
The Princeton Review Offer(s),
The Princeton Review Promotion(s),
The Princeton Review Saving(s),
The Princeton Review Test Prep Coupon(s),
The Princeton Review Test Prep Deal(s),
The Princeton Review Test Prep Discount(s),
The Princeton Review Test Prep Offer(s),
The Princeton Review Test Prep Promotion(s),
The Princeton Review Test Prep Saving(s),
The Princeton Review.com Coupon(s),
The Princeton Review.com Deal(s),
The Princeton Review.com Discount(s),
The Princeton Review.com Offer(s),
The Princeton Review.com Promotion(s),
The Princeton Review.com Saving(s),
The Princeton Review Coupon(s),
The Princeton Review Coupon(s),
The Princeton Review Deal(s),
The Princeton Review Discount(s),
The Princeton Review Offer(s),
The Princeton Review Promotion(s),
The Princeton Review Saving(s),
The Princeton Review Test Coupon(s),
The Princeton Review Test Deal(s),
The Princeton Review Test Discount(s),
The Princeton Review Test Offer(s),
The Princeton Review Test Promotion(s),
The Princeton Review Test Saving(s),
The Princeton Review Coupon Code(s),
The Princeton Review Promo Code(s),
The Princeton Review Discount Code(s),
The Princeton Review Promotional Code(s),
The Princeton Review Promotion Code(s),
The Princeton Review Saving Code(s),
The Princeton Review Test Prep Coupon Code(s),
The Princeton Review Test Prep Promo Code(s),
The Princeton Review Test Prep Discount Code(s),
The Princeton Review Test Prep Promotional Code(s),
The Princeton Review Test Prep Promotion Code(s),
The Princeton Review Test Prep Saving Code(s),
The Princeton Review.com Coupon Code(s),
The Princeton Review.com Promo Code(s),
The Princeton Review.com Discount Code(s),
The Princeton Review.com Promotional Code(s),
The Princeton Review.com Promotion Code(s),
The Princeton Review.com Saving Code(s),
The Princeton Review Coupon Code(s),
The Princeton Review Promo Code(s),
The Princeton Review Discount Code(s),
The Princeton Review Promotional Code(s),
The Princeton Review Promotion Code(s),
The Princeton Review Saving Code(s),
2.4. Affiliates shall not include the words "The Princeton Review," or any other The Princeton Review
Variations, either alone or in combination with any other words or phrases in the affiliate website domain or sub-domain name.
2.5. Affiliate shall promptly notify The Princeton Review and Awin of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the
Engagement. The Princeton Review will use reasonable efforts to respond to all concerns upon notification by Affiliate. The Princeton Review will have no liability to Affiliate for any malfunctioning of the Required URLs.
3. COMMISSIONS.
3.1. The Princeton Review agrees to pay Affiliate the commission specified in the Engagement if The Princeton Review sells to a visitor to The Princeton Review Site (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed the The Princeton Review Site and purchased the product or service via a Qualifying Link. So long as Affiliate is owed at least $25 in commissions per month, commissions shall be paid based on calendar month within 30 days of the end of each month. If Affiliate is owed an amount less than $25 in commissions in any given month, then The Princeton Review shall not be required to make such monthly payment and any commission owed to Affiliate shall be carried over into the following quarter. The Princeton Review shall be required to make the payment of all accrued and unpaid commissions to Affiliate in the first subsequent quarter in which the aggregate referral fees owed (including those that have been carried over) is at least $25.
3.2. Payments to Affiliate shall be based upon The Princeton Review's calculations of amounts owed.
Affiliate is only eligible to earn commissions on sales completed during the term of this Agreement.
Commissions earned through the date of termination will be payable only if the related purchases are not cancelled or returned. The Princeton Review may withhold Affiliate's final payment for a reasonable time to ensure that the correct amount is paid.
3.3. A "Qualifying Link" is a link from the Affiliate Site to The Princeton Review Site using one of the
Required URLs or any other URL provided by The Princeton Review for use in Awin if it is the last link to The Princeton Review Site that the Customer uses during a Session (as defined below) where a sale of a product or a service to Customer occurs. A "Session" is the period of time beginning from a Customer's initial contact with The Princeton Review Site via a link from the Affiliate Site and terminating when the Customer either returns to The Princeton Review Site via a link from a site other than the Affiliate Site or the Engagement expires or is terminated.
3.4. The Princeton Review shall have the sole right and responsibility for processing all product and service orders made by customers. Affiliate acknowledges that all agreements relating to sales to Customers shall be between The Princeton Review and the Customer.
3.5. All determinations of Qualifying Links and whether a commission is payable will be made by Awin and will be final and binding on both The Princeton Review and Affiliate. Prices for the products will be set solely by The Princeton Review in its discretion.
3.6. Notwithstanding Section 5.2 hereof, in the event The Princeton Review, in its sole discretion, determines that there is fraud or other unlawful conduct by Affiliate or by any third party with respect to Customers accessing The Princeton Review Site through links on the Affiliate Site and subsequent purchases by such Customers, then The Princeton Review shall be entitled to suspend or deny payments with respect to purchases by such Customers in whole or in part and to terminate this Agreement immediately with no further liability to Affiliate.
4. OWNERSHIP AND LICENSES.
4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. The Princeton Review grants Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, as designated in the Engagement or during the registration process in Awin on the Affiliate Site solely for the purpose of creating links from the Affiliate Site to the The Princeton Review Site during Engagements. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Affiliate may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
4.3. Affiliate grants The Princeton Review a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate solely for co-branding purposes or as a return link from the The Princeton Review Site to the Affiliate Site. The Princeton Review will remove such graphic or banner ad upon Affiliate's request.
5. TERMINATION.
5.1. Either party may terminate any Engagement at any time by deleting their acceptance of the
Engagement through The Awin Termination of an Engagement shall not terminate this Agreement or any other Engagement.
5.2. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five (5) days prior written notice of such termination to the other party and Awin
Termination of this Agreement shall also terminate any outstanding Engagements.
However, all rights to payment, causes of action, the confidentiality and indemnification obligations hereunder and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement.
6. REPRESENTATIONS.
6.1. Affiliate represents and warrants that Affiliate's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
6.2. The Princeton Review Site, including all products, software, functions, materials and information, and any services sold, provided they are made available through the site, are provided "as is" without warranties of any kind, either express or implied. The Princeton Review disclaims all warranties, either express or implied, including, but not limited to, warranties of quiet enjoyment and non-infringement and any implied warranties of merchantability for a particular purpose or use, non-infringement, title, merchantability of computer programs and informational content, including any warranties concerning third-party sites linked to, or otherwise made available on, this site, or absence of viruses or other harmful programs.
6.3. The Princeton Review does not warrant or make representations regarding the operation of the
The Princeton Review Site, the use, validity, accuracy or reliability of, or the results of the use of the materials on The Princeton Review Site, the products or services obtained through The Princeton Review Site or linked to The Princeton Review Site. The materials or prices on the site may be out of date or in error, and The Princeton Review makes no commitment to update the materials on The Princeton Review Site. No advice or information, whether oral, written or obtained by Affiliate from The Princeton Review or through The Princeton Review Site shall create any warranty that is not expressly made herein. The Princeton Review does not and cannot guarantee or warrant that the files available for downloading from the The Princeton Review Site, if any, will be free from viruses, logic bombs, worms, Trojan horses or other code that manifests contaminating, destructive or operationally degrading properties. The Princeton Review does not warrant that the The Princeton Review Site, or its product, software, materials or services will be uninterrupted or error-free or that any defects in the The Princeton Review Site, or its product, software, materials or services will be corrected.
7. CROSS-INDEMNIFICATION.
7.1. Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
8. LIMITATION of LIABILITY.
8.1. NEITHER PARTY WILL HAVE ANY LIABILITY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL DAMAGES, WHETHER OR NOT ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT WILL THE LIABILITY OF EITHER PARTY FOR MONETARY DAMAGES EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT FOR THE TWO MONTHS PRIOR TO THE CONDUCT GIVING RISE TO SUCH CLAIM.
9. GENERAL.
9.1. The parties are independent contractors, and neither party is an employee, agent, partner or joint venture of the other. Without limiting the foregoing, neither party is authorized to act on behalf of the other, and neither party shall have the right to bind the other to any agreement with a third party or to incur any obligation or liability on behalf of the other party.
9.2. This agreement will be construed in accordance with the laws of the State of New York.
9.3. This Agreement may be executed (including by email) in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument.
9.4. This agreement contains the entire understanding of the parties with respect to the transactions and matters referred to, supersedes all previous communications, understandings and agreements (whether oral or written), cannot be amended except by a writing signed by both parties.
9.5. If any clause, sentence or other provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining clause, sentence, or other provisions shall remain in full force and effect.
9.6. This Agreement and the rights granted hereunder, may not be transferred or assigned by either party without the other party's prior written consent. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
9.7. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by email, facsimile, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed as set forth above or to such other address as shall be notified to the other party from time to time. If notice is given in person, by courier, email or facsimile, it shall be effective upon receipt; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.
9.8. Each party will, and will require its personnel and its representatives to, keep confidential and refrain from using in any manner adverse to the disclosing party confidential or proprietary materials or information submitted to it by the other in connection with the performance of this agreement. The foregoing does not apply to information (i) publicly announced or known, (ii) received from a third party without violation of an obligation of confidentiality, (iii) generated independently without reference to information received under this agreement, or (iv) required to be disclosed by law.
